Ofcom Draft Code of Practice for the Digital Economy Act #DEAct

Just ploughing through the 73 pages of the Ofcom Draft Code of Practice for the Digital Economy Act.

There isn’t much time for the industry to respond here and I’m certainly not in a position to give it a comprehensive review after 10 minutes of scan-through reading.

A few points do immediately jump out of the page at me though.

As previously reported the initial Code is only going to apply to ISPs with 400,000 or more subscribers. Ofcom considers that his will cover 96% of infringers.

These ISPs’ regulatory types are going to have the delay their holidays this summer. They only have 8 weeks to comment. All this we already knew of course.

What does hit home is the amount of system development work these larger ISPs are going to have to do to guarantee the integrity and accuracy of the whole process.

So the costs to the industry are already starting.

Ofcom does not attempt to discuss either the enforcement and appeals process or the costs appropriation. These are due for consultation in August (4 months) and October (2 months) respectively.

There is some overlap for some of these consultations because the outcome of one could influence the response on another. In an ideal world these consultations would all be sequential.

Government action is required to facilitate cost apportioning. The Statutory Instrument for this is needed in the July timeframe. When does Parliament break up for its 3 month holiday?

Under section 124K (2) of the 2003 Act, Ofcom is required to appoint an independent person to determine subscriber appeals. Also 7.3 The notification procedure proposed in the draft Code ensures that a subscriber’s identity is not disclosed directly or indirectly to a Copyright Owner without the express written consent of the subscriber.

It will be interesting to see how an appeals process could be undertaken whilst preserving the anonymity of the subscriber.

The Copyright Infringement Reports (CIRs) must provide details of the infringement and should provide both the start and end time of the period during which the evidence was gathered. Currently these notices from Rights Holders only provide a single timestamp. The notices will have to change from their current format.

It also appears that subscribers will potentially have only 4 weeks between a first and second CIR notification. I’m sure that this will be clarified during the consultation on Disputes and Enforcement. The obvious question is whether this is enough time for an appeals process to work.

Grounds for appeal include a claim that the act constituting the apparent infringement to which a CIR relates was not done by the Subscriber and the Subscriber took reasonable steps to prevent other persons infringing copyright by means of his/her internet access service.

This is the most contentious bit and relates to the fact that the Subscriber is effectively guilty until they can prove themselves innocent. Also what might constitute “reasonable steps”?

It’s going to be a busy summer for all concerned. I wonder whether Lord Mandelson is planning any more lunches aboard yachts. At least he is no longer in power.

Published by Trefor Davies

Liver of life, father of four, CTO of trefor.net, writer, poet, philosopherontap.com

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2 Comments

  1. aye, at least the dark lord can’t keep up the pressure now he has slunk off to wherever dark lords go when they get sussed. Maybe the new parliament when they settle in will get to grips with it all and see through it, but am not holding my breath.
    O dear, the deeply flawed deact will hold back progress until someone in power is willing to listen. The whole thing is a shambles, and will come back to bite them for sure. poor old digitalbritain, a laughing stock.

  2. Dear Trefor,

    I read your blog about the Draft Code of Practice this morning and, since I am writing a short news story about this matter, I am looking for a quote ‘from the industry’. Can I quote you from this story?

    Thank you very much for getting back to me, looking forward to hear from you,

    Best regards,

    Michiel Willems

    Michiel Willems
    Associate editor

    E-Commerce Law & Policy
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